23 September 2014

Student Blog - Presumed Consent to Organ Donation in Wales: A Brief Commentary

By Scott Clair
3rd Year Undergraduate LLB Student, University of Edinburgh

The decision of the Welsh Assembly to introduce a new ‘opt-out’ system for organ donation is one which raises interesting ethical questions. On the one hand, there are those who strongly endorse such an approach on utilitarian grounds as one which will lead to a substantial increase in the amount of organs for transplantation – indeed the Welsh government have already hypothesised that the introduction of such legislation will lead to an increase in donors of about 25 per cent. Conversely, one may question the ethics of such a ‘presumed consent’ model, which raises the wider ethical question of whether consent can ever be said to be true in any meaningful sense where it has been presumptively pre-ordained by policy.

Whilst the pragmatists will take the view that fundamentally this is a policy which will save lives, such a presumptive approach is arguably at risk of setting something of a dangerous precedent in relation to other legislation. Moreover, it would surely be to undermine individual autonomy - and contrary to Kantian thought - to use patients so shamelessly as a means to an end. Nevertheless, none of this is to detract from the reality that the shortage of suitable organs in the UK is a growing problem – the BBC have noted that, as an estimate, 250 people are on a waiting list for a transplant at any one time. For thought, a total of 33 people died in Wales last year by waiting. Only time will tell if the rest of the UK will follow suit, and it may indeed transpire to be the case that, as the Welsh Secretary of the British Medical Association (BMA) hopes, Wales has shown “the rest of the UK the way forward”.

What seems not to have been considered in any depth is the hybrid alternative of a ‘mandated choice approach’, endorsed by the Mason Institute’s very own Dr Gill Haddow. Such an approach would require everyone to make a positively-affirmed choice one way or the other, would preserve the paramountcy of patient autonomy and would certainly be far more ethically defensible than the opt-out model recently adopted by the Welsh Assembly. On the other hand, this alternative model does beg the question of whether the very expression ‘mandated choice’ is conceptually an ethical oxymoron – in other words, is it sound policy to make choice synonymous with obligation? We return again, it seems, to the realm of risks in setting dangerous precedents. The proposal certainly merits consideration however, and provided the nature and consequence of each choice was clearly articulated and adequate safeguards were put in place to protect the vulnerable, it would seem that the benefits of such an approach would – at least in theory – outweigh the burdens. We should certainly be wary of refusing to implement novel approaches to controversial bioethical issues simply because a certain portion of the populous might be at risk – moreover, it is submitted that Dr Haddow’s approach, on balance, would provide a greater framework within which to accommodate concerns as to the vulnerable. The words of Professor Ken Mason on this point are particularly illustrative: “We have, in the last decade or so, been in danger of letting the tail of medical ethics wag the dog of medical law and it is a pleasure to see that the Mason Institute, by its title, intends to reverse that trend”.

As a final thought, we may consider the reservations of Conservative AM, Darren Millar, who warned that empirical evidence from Chile, where consent to posthumous organ donation is also presumed, has shown that there is a risk that this approach will actually result in a fall in organ donors, put off by this apparent affront to individual autonomy.

It seems once again that the asymmetry between change and progress may yet to be reconciled by our policy makers…

This post was first published on 5 July 2013. 


  1. Original Comment from Scott Clair on 9 July 2013:

    Subsequent to the publication of this piece, one criticism was that the human body after death is not a person in any Kantian sense. I would be interested to invite discussion on this point, specifically:
    – What is the conceptual basis for posthumous respect for the human body?
    – Moreover, does the notion to treat all persons as an end in themselves cease upon cessation of life?

  2. Original Comment from David Stephenson Q.C. on 11 July 2013:

    Thank you Scott for your article which will no doubt help stimulate the Scottish debate. Can I offer some random observations from the legal coal face.

    1. At the public meeting of the Human Tissue Agency in London on Tuesday a speaker from the Welsh Assembly stated that attention generated by the public debate around the Welsh proposals had itself materially increased the levels of opt-in donation. This suggests current efforts to secure opt-ins are not as effective as they might be: although that is not to say that additional efforts would be cost effective or that their effects would be sustained.
    2. There is a recent discussion of issues arising from organ harvest and use in Chapter 4 of Prof Anne Phillips, Our bodies, whose property? [PUP, 2013]
    3. While not professing any expertise is Kant’s injunction not that we treat others not only as means to ends but also as means in themselves: for reasons arising from his epistomology and in particular the third antinomy (on causality) in Chapter 2 of the Critique of Pure Reason? If so it would seem to follow that a dead body is incapable of the exercise of will and does not (for Kant) require to be considered as an end in itself.
    4. Does this matter? Is asking what the conceptual basis is for posthumous respect for the human body a helpful starting point if in fact such respect exists universally in human culture, albeit expressed differently?

  3. Original Comment from Scott Clair on 15 July 2013:

    Thanks for your response, David – all very interesting points!